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FOIA Overview & FAQs

Overview of and FAQs about Virginia's Freedom of Information Act of 2007

2.2-3700. SHORT TITLE. POLICY
Commentary for §2.2-3700

The Virginia Freedom of Information Act (FOIA) was enacted July 1, 1968. The statute ensures citizen access, with certain exceptions, to records and meetings of state and local government.

In FOIA's 30-plus years, numerous amendments have been added and changes made. The 1999 General Assembly gave FOIA a major overhaul in an effort to clarify previously ambiguous provisions. Besides making substantive changes, the 1999 amendments also reorganized portions of the statute and stripped out some of FOIA's cumbersome language.

In 2001, the statute was renumbered, though no major substantive changes were made. When reading over old court, Attorney General and Freedom of Information Advisory Council opinions for help in interpreting FOIA, you may have to "translate" the former statute numbers into the new numbers.

In 2004, the exemptions for disclosure to records were reorganized. Instead of a long list of 100-plus exemptions, which made searching for exemptions tedious, the exemptions are now found in one of seven broad categories. For example, all of the exemptions that deal with public safety are now found under one heading (§2.2-3705.2), while all agency-specific exemptions are found under another (§2.2-3705.7).

Current law states that local and regional government bodies cannot meet through electronic means (video- and teleconferences, for example). In 2005, however, new rules went into effect that allow state agencies to meet electronically under very specific circumstances and following very specific procedures. That section is found at §2.2-3708.

As for the policy behind FOIA, the Act's objective, as declared by the General Assembly, is to guarantee access to public records and the meetings of government officials.

The pre-1999 statute directed that the exemptions under FOIA are to be interpreted narrowly. At the same time, the rest of FOIA's provisions are to be interpreted liberally to improve citizen understanding of government workings. The 1999 amendments bolstered this general policy by adding an affirmative statement that all public records and meetings are presumed open.

The exemptions to disclosure of records and for closed meetings are discretionary, not mandatory. There is no penalty for releasing records that could be withheld under an exemption, though some provisions elsewhere in the Virginia Code or a federal law may prohibit disclosure. There is also nothing that says a meeting must be closed just because it could be closed under a meetings exemption.

FOIA encourages cooperation between citizens and government representatives, and it voids local government ordinances that conflict with its provisions.

For a comprehensive list of opinions interpreting FOIA over the years (by the courts, Virginia Attorneys General and the Freedom of Information Advisory Council, click here.

Also, if you have specific questions about FOIA, contact the Virginia Freedom of Information Advisory Council, toll-free, at 1-866-448-4100 or foiacouncil@dls.virginia.gov.

Questions & Answers for §2.2-3700

1. Why is a Freedom of Information Act necessary?

Government business is the people's business. The Freedom of Information Act ensures that citizens have the right to inspect and copy public records and attend public meetings.

2. If a statutory exemption exists, does the record's custodian or public body have to withhold a public document or close a public meeting?

No. Exemptions are not mandatory. They are to be narrowly construed to favor citizen access. There is no penalty for releasing public documents or opening public meetings that an exemption could have barred.

There are other parts of the Code of Virginia that expressly prohibit disclosure of certain records. These usually refer to a very specific type of record, such as juvenile records (§16.1-305) and tax records that reveal the identity of the taxpayer (§58.1-3).

3. May a local government enact an ordinance that includes extra exemptions or changes FOIA's basic procedures?

No. Local ordinances that conflict with FOIA are void.

2.2-3701. DEFINITIONS.

Commentary for §2.2-3701

The definitions section furnishes the first glimpse at how the 1999 General Assembly went about crafting a more logically written and organized statute. The definition of "criminal incident information" was moved from the definitions section to a new subsection on criminal records (see §2.2-3706). Now, all issues related to criminal and "noncriminal" law-enforcement records are in one place. The definition of "public body" may look more extensive, but it is really the same definition that formerly existed. Previously, "public body" was partially defined in the definitions section and partially defined in the meetings provisions. The two definitions were combined into one definition in the definitions section.

The phrase "emergency meeting" is used frequently in the subsections dealing with access to public meetings. That term has been defined now in this section.

"Public records" is the name for what used to be called "official records." The definition of "public records" has also been expanded to incorporate present-day methods of keeping, recording and storing information.

What was alternately known as "executive meeting" and "closed meeting" in previous versions of FOIA is now defined only as "closed meeting."

The 2002 General Assembly added a provision to counter a Virginia Supreme Court opinion, Connell v. Kersey, that said Commonwealth Attorneys, as constitutional officers, were not subject to FOIA. The 2002 amendment expressly extends FOIA's mandates to all constitutional officers. In conjunction with this change, an amendment was made to the criminal records section (§2.2-3706) to ensure that certain investigatory files kept by local prosecutors can be withheld under FOIA.

In 2007, the General Assembly added definitions for "electronic communications" and "regional public bodies," both referred to in the sections on electronic meetings.

Questions & Answers for §2.2-3701

1. Does the definition of a "public body" apply to both records and meetings?

Yes. There is only one definition for a "public body," and it applies to both records and meetings.

2. What are "public records" and "closed meetings"?

"Public records" are basically anything the government uses to transact public business. Whether written on a computer screen or chiseled onto a rock, if it's about public business, it's a public record.

"Closed meeting" is the name now used for what was called "executive meeting."

3. Does every gathering of various members of a public body constitute a "meeting" under FOIA?

No. This section and §2.2-3707 specifically provide that the mere gathering of a public body's members (for instance, at a picnic or other social function) is not a "meeting" subject to FOIA if the purpose of the gathering is not to discuss or transact public business and the gathering is not organized for that purpose.

In other instances, work sessions, and informal assemblages of as many as three members of a public body (or two members of a three-person entity) are considered "meetings."

4. Does the act cover meetings of committees and subcommittees?

Yes. When committees and subcommittees are created to perform delegated functions of the public body or to advise the public body, they must also follow FOIA's rules. Where it gets tricky is when members of the public body are also members of the committee. FOIA would allow two members of a board to meet together without it being considered a meeting, but if those two members are two-thirds of a three-member subcommittee, then they would have to follow FOIA.

5. Are attorneys for the Commonwealth, commissioners of revenue or other constitutional officers bound by FOIA?

Yes, as it pertains to records. The 2002 provision states: "For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records."

6. In the definition for "public body," what is meant by "supported wholly or principally by public funds"?

FOIA is a mechanism for citizens to monitor their own government. Private companies are not subject to FOIA. The act's use of the phrase "supported wholly or principally by public funds" is an attempt to draw a distinction between those bodies that are truly governmental in nature, and those, such as government contractors, who deal with government, but who do not spend public money in the exercise of government power. The Freedom of Information Advisory Council has said that, as a general guideline, an entity must receive at least two-thirds (66%) of its funding from public resources to be considered a "public body," though a definitive answer covering "borderline" cases would have to come from the courts.

2.2-3702. NOTICE OF CHAPTER.

Commentary for §2.2-3702

This section requires that any person elected, reelected, appointed or reappointed to any public body be given a copy of FOIA by the public body's administrator or legal counsel within two weeks of election, reelection, appointment or reappointment.

Subsection (B) places an affirmative duty on public officials to read and familiarize themselves with FOIA and how it works.

2.2-3703. PUBLIC BODIES AND RECORDS TO WHICH CHAPTER INAPPLICABLE; VOTER REGISTRATION AND ELECTION RECORDS; ACCESS BY PERSONS INCARCERATED IN A STATE, LOCAL, OR FEDERAL CORRECTIONAL FACILITY

Commentary for §2.2-3703

Section 2.2-3703 specifically exempts four entities from FOIA: the Virginia Parole Board, petit and grand juries, family assessment and planning teams, and the Virginia State Crime Commission. Financial records and certain aggregated data of the Virginia Parole Board, however, are considered public records.

The section also affirms that some voter registration and election records are open records, but only if their release does not conflict with Title 24.2.

In 2007, the legislature specified that land records made available by clerks of court on their Internet subscription services are not subject to FOIA.

Finally, this section specifies that neither individuals committed as sexually violent predators and, except with regard to evidence in his/her own case, prisoners cannot take advantage of the benefits of FOIA.

Questions & Answers for §2.2-3703

1. Is this a new provision?

The 1999 amendments combined two provisions formerly found elsewhere in FOIA. The Virginia Parole Board, petite and grand juries, the family assessment and planning teams, and the Virginia State Crime Commission continue to be excepted from FOIA, as do certain voter registration and election records.

2. Can I make a FOIA request for a deed of trust held by the clerk's office?

Yes, if you are at the courthouse asking for a paper copy of the land record. Only land records on the clerks' secure remote access subscription services are outside the scope of FOIA.

3. Can an inmate at Red Onion prison make a FOIA request for records?

Unless the requested records are related to getting evidence in the prisoner's case, incarcerated individuals may not use FOIA. In reality, a friend or relative living in Virginia could make a request for records and pass that information on to the prisoner.

2.2-3704. PUBLIC RECORDS TO BE OPEN TO INSPECTION; PROCEDURE FOR REQUESTING RECORDS AND RESPONDING TO REQUEST; CHARGES.

Commentary for §2.2-3704

The 1999 amendments significantly altered §2.2-3704, which addresses the procedures for requesting the right to inspect and copy public records. This section sets out the steps both the requester of records and custodian of records custodian must follow. The section used to form the bulk of FOIA because it included both the procedures and all of the exemptions. Now, while this section remains dedicated to procedures, the exemptions have been moved into other sections (§2.2-3705.1 through §2.2-3705.7).

There is nothing in FOIA that requires a requester to put his or her request in writing or even to invoke the Act specifically when making a request; however, in 2002 a clause was inserted allowing a records custodian to require a requester to put his name and address in writing, presumably to verify that the requester is a citizen of the Commonwealth for whom FOIA's provisions are available to inspect.

A requester does not have to say why he or she wants a public record or what will be done with the record in the future.

Once it has been established that a citizen has asked for a record and described it with reasonable specificity, the custodian must act promptly, and always before the end of five business days. The custodian can either make the all of the records available in their entirety or make one of four responses: (1) the entire record is being withhold; (2) some of record is being withheld but other parts are being withheld; or (3) the record could not be found or does not exist; or (4) the request cannot be processed within the time limit and an additional seven days is needed. Also, if a record custodian knows where a record is, or who might have it, she should relay that information to the requester.

When a record or any portion of a record is withheld, the custodian must give a written explanation identifying which records are being withheld and why. The custodian must explain which specific FOIA section (or other statutory provision) permits confidentiality.

If the custodian cannot fulfill the request for records within the required five days, the law says that the custodian can get a seven-day extension, but only after stating in writing, within the original five days, why the extra time is needed. Failure to respond to a FOIA request within five days is considered a denial of access and a violation of FOIA.

Custodians may charge a reasonable fee for finding and copying public records; however, this fee is not to exceed the actual cost. A public body cannot recover overhead expenses through fees assessed from processing FOIA requests. A public body may require a deposit for requests that will cost more than $200 to process. The deposit cannot exceed the final cost, and the deposit will be applied to the total. If the requester has a 30-day or older outstanding bill for a previous records request, the custodian may require payment of that bill before handing over the records.

Public records maintained in electronic format received particular attention in the 1999 General Assembly. A custodian can post any information it wants on a Web site or through e-mail. A requester is entitled to receive electronic records in the same format used by the custodian, and the custodian can agree to provide the records in a different format for a reasonable fee.

A custodian generally is not required to create a new record for a requester. The 1999 amendments statethat conversion of an electronic record from one format to another or excision of exempt field of information is not the same as the creation of a new public record.

Questions & Answers for §2.2-3704

1. This section used to contain all the public-records exemptions to FOIA. Where are they now?

All of the public-records exemptions are found in §§2.2-3705.1 through 2.2-3705.5. The exemptions for police records are now found at §2.2-3706.

2. Can a custodian require someone to put his or her request for a record in writing?

No. There is no requirement that the request be in writing. However, a records custodian may require the requester to put his/her name and address in writing. Also, to facilitate processing the request, there is nothing to prevent either a custodian or a requester from writing down a request to clarify both what is being requested and when the request came in.

3. How do I know which records to ask for?

Citizens are not expected to know what every government records is called -- either the name, the number or the function. FOIA requires only that a request for records be reasonably specific, but sometimes records custodians genuinely don't understand what is being asked for. The Library of Virginia has a records retention schedule for local and state governments. It describes the types of records the government might hold, and it tells the government how long it must hold on to the record before it can be disposed. The records retention schedules are thus an excellent resource for requesters trying to determine exactly which records they need to ask for. Click here for the schedule of state records, and click here for the schedule of local records.

4. If a records custodian thinks someone is asking for a record just to stir up trouble, can he or she ask why the requester wants the records?

No. There was a provision in FOIA in the early '70s that required the requester to identify why he or she wanted the information. That provision was deleted and a 1988 Virginia Supreme Court case made clear that a person's motivation in making a request is irrelevant.

5. When someone asks for public records, how long does the records custodian have to respond?

A response is required within five working days. Often times when a requester has asked for a record that does not exist, a records custodian will think a response is unnecessary. While technically true, a simple response informing the requester of that fact is preferable to silence. A lack of response looks too much like a violation of FOIA and can lead to nasty accusations.

6. What options are there if a requester asks for a large number of records? Does the records custodian have a total of 12 days to complete the request?

Yes, but only if the records custodian gives the requester written notice within the first five business days of the request. The notice must explain why it is impossible to fill the request within the five-day period. It is a violation to take seven additional days to complete the request without notifying the requester within the first five days that extra time is needed.

7. What happens if the public body does not respond within five days?

A failure to respond is considered a violation of FOIA.

FOIA encourages records custodians and requesters to work together to best manage the way in which requests are processed and filled.

8. What happens when someone requests records from one office, but the records are held by another office? Can the request be ignored?

Because citizens often do not know the intricacies of how the government is organized or which department has control over which exact functions, it is still the duty of the records custodian to move the request along, either by telling the requester where the records are, or by making sure the request gets forwarded to the correct place. This may be true even when the records are in the physical possession of a private contractor.

9. What happens if all of the records the requester asked for are exempt?

A records custodian must still respond to the requester within five days. The response must be in writing, must describe which records are exempt, and must cite either a FOIA exemption or another state or federal law that allows the records to be withheld.

10. Can a records custodian charge a requester for the computer hardware, software or extra electricity it takes to process a request?

No. A records custodian can charge only for the actual, reasonable cost of accessing, duplicating, supplying or searching for the records.

11. What are the requester's and records custodian's rights and obligations for assessing charges?

A requester can ask the records custodian to estimate in advance the cost of filling a request for records, which presumably gives a requester the right to refuse further action if he or she thinks the amount is too expensive.

For requests of $200 or more, the records custodian can ask the requester to pay a deposit of up to the total amount it will cost to process the request. Any amount deposited will be credited toward the final total.

A records custodian may require a requester to pay any bills for past FOIA requests that are more than 30 days old before the custodian processes the next request for records.

12. Can a requester ask for a summary of records?

Under FOIA, a records custodian does not have to summarize, abstract, or create a new public record. However, the statute encourages government officials to make reasonable efforts to reach an agreement with the requester.

13. Can a records requester ask for select portions of an electronic database that has some exempt information in it?

Yes. The act specifically states that the redaction of exempt fields of information from a database is not the same as creating a new record, which, except for salary disclosures, is otherwise not required by FOIA.

14. Can records be sent via e-mail rather than in paper form?

If the requester and the records custodian have agreed to send records in this fashion, it is entirely permissible under FOIA. If the requester has specified that he or she wants paper copies, then that is the format they must be provided in, though a records custodian may of course charge for those paper copies.

FOIA encourages dissemination of public records by e-mail. It also encourages placement of information on a Web site. If the public body does not use e-mail or a Web site, the requester cannot require that the information be provided in such a format.

15. What if a requester wants to look at records, but does not want copies?

FOIA allows for inspection or copying of public records. A requester cannot be charged for the time a records custodian spends monitoring the requester's inspection.

2.2-3704.1. POSTING OF NOTICE OF RIGHTS AND RESPONSIBILITIES BY STATE PUBLIC BODIES; ASSISTANCE BY THE FREEDOM OF INFORMATION ADVISORY COUNCIL.

Commentary for §2.2-3704.1

This section requires all state public bodies in the executive branch to post on their Web sites plain-English explanations of requesters' rights and records custodians' obligations under FOIA.

Questions & Answers for §2.2-3704.1

1. Do local government bodies have to comply with this section?

No, and neither does the legislative branch or its subdivisions. Though, of course, it is good public policy to do so anyway. The legislature has an excellent Web site, though it does not include subcommittees' recorded votes. Click here for that site.

2. What information about FOIA should be posted on a Web site?

The section requires a plain-English explanation of the act. It also requires the identification of a FOIA contact person within the agency, and it requires the posting of any policy the agency has concerning the type of public records it routinely withholds from the public.

3. How is this section enforced?

The Freedom of Information Advisory Council is authorized to assist any agency in implementing the provisions of this section. There is no specific enforcement mechanism, but as with all of FOIA, a violation of its provisions could be the basis of a court action to force compliance.

2.2-3705.1. EXCLUSIONS TO APPLICATION OF CHAPTER; EXCLUSIONS OF GENERAL APPLICATION TO PUBLIC BODIES.

Commentary for §2.2-3705.1

This is the first of seven categories under which the discretionary exemptions to disclosure of public records are organized. The ones in §2.2-3705.1 are generally available to all public bodies.

2.2-3705.2. EXCLUSIONS TO APPLICATION OF CHAPTER; RECORDS RELATING TO PUBLIC SAFETY.

Commentary for §2.2-3705.2

Of note in this section: Exemption (4) was reworked in 2002 to address terrorist activity. The exemption covers certain records that if released would "jeopardize" government or the general public.

Of note in this section: Exemption (11) was reworked in 2006 to require greater public disclosure of proposed Public-Private Partnership projects. Private entities must put in writing any request to exclude from immediate disclosure trade secrets, financial records or documents that could adversely affect the public or private entity's bargaining position. Thereafter, a public entity must put in writing a determination of what it is willing to keep confidential. Any financing arrangement that involves use of public funds must be immediately disclosed. The bill also amends the Public-Private Transportation Act and the Public-Private Education Act to require a public entity to post all accepted conceptual proposals, whether solicited or not. The bill also requires that at least one copy of the proposals be made available for public inspection and mandates a 30-day public comment period before execution of an interim or comprehensive agreement.

2.2-3705.7. EXCLUSIONS TO APPLICATION OF CHAPTER; RECORDS OF SPECIFIC PUBLIC BODIES AND CERTAIN OTHER LIMITED EXEMPTIONS.

Of note in this section: The working papers exemption (2), has been narrowed by defining what is meant by "working papers" and the "Office of the Governor." It now includes a statement that an otherwise public record is not turned into an exempt working paper by virtue of the fact that it has been attached to or incorporated into personal correspondence.

2.2-3705.8. LIMITATION ON RECORDS EXCLUSIONS.

Even though an argument could be made that salary information is a personnel record, this section specifically states that salary information for all public employees making over $10,000 must be disclosed.

In 2002, a provision was added to clarify that "nothing in this chapter shall be construed as denying public access to the nonexempt portions of a report of a consultant" if the report's contents have been distributed or disclosed to the local public body, or if the public body has scheduled action on a matter that is the subject of the report. Consultants' reports were frequently characterized as working papers in the past, but the new section makes clear that working papers and consultants' reports are two separate things.

There are a large number of Attorney General opinions on the issue of whether certain information falls under an exemption. Consult your attorney, the law library or the opinions database at for assistance.

Questions & Answers for §2.2-3705.1 through 2.2-3705.8

1. Does the mayor have to disclose personal letters that come to the office?

If the mayor is the city's chief executive, then no; if the mayor is merely the council's head and it is a city manager who is the city's chief executive, then yes. The working papers exemption includes correspondence for the chief executive's use. However, a personal letter attached to an otherwise public record does not turn that public record into an exempt one.

2. The former statute exempted certain criminal records. What happened to that exemption?

All statutes relevant to the release and withholding of certain criminal records have been combined into a new subdivision, §2.2-3706.

3. Are "proprietary" records still exempt from disclosure under 2.2-3705.6. Exemption #11?

The 2006 amendments removed any reference to "proprietary" information. The term was not defined in the Code and no one knew what it meant.

4. If a particular record falls under an exemption, is disclosure of the record prohibited?

No, not by FOIA. FOIA exemptions are discretionary. Some other provision in the Virginia Code may prohibit disclosure, however.

5. Is a high school football coach's salary public information, or is it a personnel record?

While salary information is part of a personnel record, FOIA specifically states that the salaries of public employees who make $10,000 or more annually must be disclosed upon request.

2.2-3706. DISCLOSURE OF CRIMINAL RECORDS; LIMITATIONS.

Commentary for §2.2-3706

This section was added by the 1999 amendments, creating a section to deal exclusively with criminal records. The section states affirmatively the information that shall be released. "Criminal incident information" (general description of any felony; general location of the incident; identity of the investigating officer; and description of injuries or property damage) must be disclosed except when likely to jeopardize an ongoing investigation.) The existing exemptions were reorganized, and expanded to provide that "mug shots" of adult arrestees need not be released if necessary to avoid jeopardizing an investigation in felony cases. The photograph must be released when such threat no longer exists.

Questions & Answers for §2.2-3706

1. Does this new section consist of new exclusions?

All of the exemptions in (F) used to be found elsewhere in FOIA. Since the reorganization, exemptions have been added for "mug shots," which may be withheld only so long as releasing such photographs would jeopardize an investigation in a felony case, and the cell phone, pager and portable communication numbers of law-enforcement personnel confidential. Non-exempt portions of 911 recordings must be disclosed.

2.2-3707. MEETINGS TO BE PUBLIC; NOTICE OF MEETINGS; RECORDINGS; MINUTES.

Commentary for §2.2-3707

This section requires that all public meetings be open to the public.

The 1999 amendments altered many subdivisions of §2.2-3707. The definitions of meetings and public meetings were moved to §2.2-3701. An explanation that certain informal gatherings are not considered meetings was moved from the definitions section into (G) of this section. Also, notice provisions have been clarified and expanded, as were the requirements for minutes taken at a public meeting.

There are rules a public bodies must follow to publicize public meetings. A public body should post notice of a meeting in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body. The 2000 General Assembly altered the provision from its previous version, which said notice could be posted at either of these locations. A public body that does not have a clerk's office should post notice in the office of the body's chief administrator. Localities may post notice on their Web sites if they have one, but state agencies are required to post notice on their sites.

To receive regular notice of meetings, a citizen must submit a written request that includes a name, address, zip code, daytime telephone number and the organization he or she may be representing, if any. This helps to ensure that if the person leaves his/her job, the person who fills the vacancy will also get notice.

The section ensures that citizens have the right to record meetings subject to general rules to guard against interference with the meeting.

A public body must take minutes. There are some minimum requirements for what minutes must include, but they don't have to be in a particular format. Minutes are public records.

At the same time the public body distributes agenda materials to its members, the public body must provide at least one copy of the same materials, except for any exempt public records, for public inspection. It is good public policy to provide copies of the agenda materials at the meeting as well.

Questions & Answers for §2.2-3707

1. If a public body regularly posts notice of upcoming meetings on a bulletin board, does the body also have to post notice at the clerk's office?

Yes. Notice should be posted at a prominent location where notices are posted regularly, such as a bulletin board, and in the office of the public body's clerk. However, if the public body does not have a clerk, then notice should be posted in the office of the body's chief administrator. For local governments, notice may also be posted on a public body's Web site or distributed notice via e-mail; state government agencies must post notice on the Internet.

2. What information must be included in the notice?

Notice must include the date, time and location of a meeting. State governmental bodies must also include whether and at what point public comment will be received at the meeting.

3. May a citizen make a standing request to be notified of all meetings of a public body?

Yes. These requests must be made at least once a year in writing and must include the name, address, zip code, daytime telephone number, and organization (if any) or the requester. Notice by e-mail is allowed if the requester has provided an e-mail address. However, it is sufficient to comply with this section if the public body gives notice of all the meetings planned for the year or that meetings are always held on a certain date and time (e.g., the first Monday of every month at 7:30).

4. Does the public body have to disclose records included in its agenda that could be exempt under §§2.2-3705.1 through 2.2-3705.7?

No. When providing at least one copy of the agenda for public inspection, a public body may withhold exempt records that are included in the materials.

5. Do the same rules for notice and agendas apply to special or emergency meetings?

No. Notice that is "reasonable under the circumstances" must be given, but notice to the public and to the public body's members should be given at the same time.

6. Do the notice requirements apply to the meetings of the General Assembly?

No.

7. Is it considered a meeting if two or more members of a public body go to dinner together? What if they run into each other at a public forum on neighborhood crime?

Public body members may attend social functions together without it being considered a "meeting" under FOIA, so long as the gathering is not held for the purpose of talking about or transacting public business. FOIA specifically allows members of the same public body to attend public forums, candidate appearances and debates, so long as the events are to inform the electorate and not to transact public business.

8. Are draft minutes available to the public? What about an audiotape or videotape of the meeting?

Audio, audio/visual, draft minutes and final minutes are subject to disclosure under as public records under FOIA. State boards and commissions must post draft and final minutes online, at their own Web sites and designated executive-branch portals (see §2.2-3707.1).

9. Can a public body impose a no-recording rule?

No. The public has a specific right to record meetings, so long as the recording does not interfere with the ordinary administration of the meeting. For example, a public body may place restrictions on the placement of a camera or height of a microphone, but it cannot ban recording altogether.

2.2-3707.01. MEETINGS OF THE GENERAL ASSEMBLY.

Commentary for §2.2-3707.01

After threatening to remove itself entirely from the umbrella of FOIA, the General Assembly agreed in 2004 to spell out exactly how their meetings would be conducted under the act. Now, this section specifically states which meetings will be open -- including standing committees, work sessions and joint conference committees -- and specifically states that party caucuses (e.g., the House Republican Caucus or the Senate Democratic Caucus) are not subject to FOIA. For meetings that are not specifically open, the Joint Rules Committee can make the rules governing access, but both houses have to approve of the rule for the next session, and there must be regional public hearings on the proposed rules.

Electronic meetings by the General Assembly are not allowed.

Questions and Answers for §2.2-3707.01

1. Does the General Assembly have to give notice and take minutes of their meetings?

No.

2. Can the General Assembly close a standing committee meeting?

No. FOIA specifically states that standing committee meetings are open to the public.

2.2-3707.1. POSTING OF MINUTES FOR STATE BOARDS AND COMMISSIONS.

Commentary for §2.2-3707.1

Added in 2002, this new section requires state "boards, commissions, councils, and other public bodies created in the executive branch of state government" to post minutes from their meetings online -- on the agency's Web site and on the electronic calendar maintained by the Virginia Information Technologies Agency. Draft minutes are to be posted within 10 days of the meeting's conclusion, and final, official minutes must be posted within three days of their approval.

Questions and Answers for §2.2-3707.1

1. Does this section apply to the clerk of a county board of supervisors or a city council?

No. The duty to post minutes online is limited in this section to state-level public bodies.

2.2-3708. ELECTRONIC COMMUNICATION MEETINGS.

Commentary for §2.2-3708

This section underwent a major overhaul in 2005 and again in 2007 after months of study by the Freedom of Information Advisory Council and the Joint Commission on Technology and Science. The section governs how state agencies (except the General Assembly) can conduct meetings via electronic means (such as video- or teleconferencing). Local governments are still generally prohibited from using electronic meetings, except for in emergency situations, as described below under §2.2-3708.1.

State public bodies can take advantage of these rules as many times as they like, provided that they hold at least one meeting per year in a setting where members assemble physically in one place and no one participates electronically. Otherwise, so long as there is a quorum of members in one location, the other members may meet through electronic means. The quorum requirement is waived when the Governor has declared a state of emergency. The public must be able to attend the meeting at each and every location from where a member participates.

There is a three-day notice for electronic meetings, and it must include additional information, including a phone number for the public to call if the electronic communication line between it and the main meeting is disrupted. The three-day notice requirement is waived in emergency situations (mentioned above) and where the meeting is being held to complete items on an agenda of a meeting already properly noticed.

Agenda materials must be made available to the public at the meeting, and minutes must be taken. Votes must be taken in roll-call fashion and included in the minutes.

Any state public body that holds electronic meetings under these rules must report to the Freedom of Information Advisory Council.

Questions & Answers for §2.2-3708

1. Say a state public body has only two meetings a year, can it meet electronically both times?

No. No matter how many (or how few) meetings a state public body has per year, at least one meeting must be held without any members participating electronically.

2. Can every member of the public body just sit at home and participate in a giant conference call?

A quorum of the public body (which means six members of an 11-member board, for example) must meet in the same place. With a quorum in place at one location, the remaining members may meet via electronic means. The public has to be able to attend the meeting at locations from where the members meet. That is, if a member of a public body wants to call in from home, he or she also has to make sure that there's room for members of the public to come in and participate, too.

3. The Governor has declared a state of emergency related to a threatened attack. Can a state agency take advantage of the declaration to meet electronically about its budget or something else unrelated?

No. Electronic meetings are allowed during a state of emergency, but only when the meeting is to discuss things related to the emergency. All other procedural requirements must still be met, also.

4. What does the notice for an electronic meeting have to include?

As with notice for a regular meeting, notice must include the date and time of the meeting. It must state the purpose of the meeting, identify the location where the quorum will meet and the locations from where the other members will be participating from and include a phone number to call if the lines of communication are disrupted. Notice must be given at least three days before the meeting.

5. We have an emergency that must be dealt with tomorrow, but we can't get enough people together to form a quorum. What do we do?

The public body can waive the three-day notice requirement for emergency situations noted above.

6. If the phone line is cut and a new line cannot be established, can the meeting continue?

No. The meeting cannot resume until public access is restored.

2.2-3708.1. PARTICIPATION IN MEETINGS IN EVENT OF EMERGENCY; CERTAIN DISABILITIES; DISTANCE FROM MEETING LOCATION FOR CERTAIN PUBLIC BODIES.

Commentary for §2.2-3708.1

This provision was added in 2007 to allow local and regional public bodies to take advantage of electronic meetings, but in very limited situations.

The term "regional public body" is defined earlier in FOIA (§2.2-3701) as "a unit of government organized as provided by law within defined boundaries, as determined by the General Assembly, whose members are appointed by the participating local governing bodies, and such unit includes two or more counties or cities."

Members of all public bodies can participate in a meeting electronically when there is a day-of-the-meeting emergency. They can also participate electronically when they are experiencing a temporary or permanent disability. A member of a regional public body who lives more than 60 miles from the meeting site can participate electronically contingent on the public body chair's approval.

There are various limits on these general circumstances. For instance, a person cannot use the emergency provision more than twice, or more than 25 percent of the total meetings, whichever is fewer.

The meeting also still has to have a quorum present at the main site, and the voice of the person participating electronically must be heard at the main site.

Questions and Answers for §2.2-3708.1

1. I'm a member of my county board of supervisors and it takes me more than an hour to get to the meeting because of distance and traffic. Can I just "dial it in"?

No. First, the distance exception to electronic meetings is for members of regional public bodies, not local public bodies. Second, there is nothing in the distance section that refers to the time it takes to travel. It refers to distance only: 60 miles from the main meeting site.

2. A member of a nearby regional public body always seems to have an emergency. He calls in and says something has come up that day and he can't make it. This has happened at every month this year. Is this right?

Unless it's February, no, it's not right. That's because the emergency provision is limited to two uses per public body member per year (or 25 percent of the meetings, whichever is fewer).

2.2-3709. EXPIRED

2.2-3710. TRANSACTION OF PUBLIC BUSINESS OTHER THAN BY VOTES AT MEETINGS PROHIBITED.

Commentary for §2.2-3710

This section requires that any votes taken by a public body be taken in a public meeting. This section also clarifies a provision under the former statute that secret and written ballots are prohibited, and that votes by telephone or electronic means are limited by FOIA's provisions regulating electronic meetings for state public bodies.

Questions & Answers for §2.2-3710

1. Does FOIA allow one member of a town council to call up another member and ask her how she is going to vote on a certain issue? What if she turns around and calls another member for the same reason?

FOIA allows this daisy-chain type of vote canvassing. But any "vote" the members tell each other in this chain that they will take is not binding on the public body. Only a vote taken in a public meeting is binding on the public body.

2.2-3711. CLOSED MEETINGS AUTHORIZED FOR CERTAIN LIMITED PURPOSES.

Commentary for §2.2-3711

This section reaffirms the General Assembly's policy that a public body is not required to close a meeting to the public. The body may close the meeting, but only if one of the exemptions listed in this section applies.

Most of the section is the same as previous version of the statute, with two notable exceptions made by the 1999 General Assembly: (1) a change to the exemption for real estate discussions, and (2) a change to the exemption for advice from legal counsel.

The real estate exemption, §2.2-3711(A)(3), applies now only to the acquisition of real property for a public purpose or for disposition of government-owned real property. The exemption no longer applies to discussions of the condition or use of the property. Further, discussions on the disposition of real property may be closed to the public only where the discussion would jeopardize the public body's bargaining or negotiating posture.

Section 2.2-3711(A)(7) further details what situations involving legal counsel permit closing a meeting to the public. The subdivision still allows a public body to close a meeting for discussions of "actual or probable litigation." The 1999 amendments clarified that closed-door discussions are limited to discussions that may jeopardize the public body's negotiating or litigating posture. The subdivision goes on to define what is meant by "probable litigation": "litigation which has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party." Finally, the section codifies a Supreme Court of Virginia ruling that the legal exemption cannot be invoked just because the public body's attorney is at the meeting or has been consulted on a matter up for discussion.

A section that singled out the Intervention Program Committee of the Department of Health Professions and authorities created under the Industrial Development and Revenue Bond Act from the open meeting provisions was broken out from one subdivision and given a subsection of its own, §2.2-3711(E).

Exemption (A)(20) was modified in 2002 to mirror the new terrorism provision in the records exemption section. Meetings to discuss plans to protect the public safety in response to a terrorist threat may be held in closed session.

As with the records exemption section, there are a large number of Attorney General opinions on the issue of whether certain information falls under an exemption. Consult your attorney, the law library or the opinions database at http://opengovva.org/opinions/opinions.htm for assistance.

Questions & Answers for §2.2-3711

1. Is a public body ever required to close a meeting to the public?

No. A public body is never required to close a meeting. It may do so, but only if one of the exemptions of §2.2-3711 applies.

2. May a public body close a meeting to discuss what color to paint a new school or whether to alter a zoning ordinance?

No. The real estate exemption of §2.2-3711(A)(3) applies only to discussions about the acquisition and disposition of real property. The condition or use of the property is not a proper subject for a closed meeting.

3. What is meant by the "probable litigation" phrase in the legal counsel exemption?

"Probable litigation," as used in §2.2-3711(A)(7), has been defined to mean litigation that has been specifically threatened by, or that the public body or its attorney has a reasonable basis to believe will be filed by, a known party.

4. The city attorney sits in on almost every city council meeting. Can those meetings be closed under the exemption for legal counsel?

An attorney's mere presence at a meeting does not justify closing a meeting under the legal counsel exemption.

5. Does a public body lose its right to close a meeting if a private citizen attends it?

So long as the meeting is closed using the proper procedures and a valid exemption is invoked, the public body may invite any parties necessary to the discussion to attend. The meeting does not lose its closed-meeting status due to that person's presence, again, so long as the rest of FOIA's rules are followed.

2.2-3712. CLOSED MEETINGS PROCEDURES; CERTIFICATION OF PROCEEDINGS.

Commentary for §2.2-3712

This section establishes the procedures a public body must follow before closing an open meeting.

Before a public body can close a meeting to the public, it must make a detailed motion in the open meeting's minutes that identifies: (1) the meeting's subject matter; (2) the meeting's purpose; and (3) the specific exemption under §2.2-3711(A) that applies. General references to FOIA or to the subject matter of the meeting do not suffice.

Only the matters identified in the motion are to be discussed in the closed meeting. Minutes may be taken in the closed meeting, but they do not have to be, and any that are do not have to be released as a public record.

When the public body comes out of its closed meeting, this section requires the body to reconvene in open session. Each member of the body is to affirm by roll call or recorded vote that only those matters identified in the motion to close the meeting were discussed. Any member who believes matters outside the scope of the motion were discussed is to say so prior to the vote. Failure to certify that the meeting was properly held does not affect the validity or confidentiality or matters discussed in the closed meeting.

A public body cannot take any action in the closed meetings. The body cannot take action until it has reconvened in an open meeting. There is nothing that prohibits a member of a public body from revealing what was discussed in the closed meeting.

Questions & Answers for §2.2-3712

1. What does a public body have to do before it can close a meeting?

A public body in an open meeting must make a detailed motion in the minutes, and take a vote affirming the motion, before the body may close the meeting. The motion must include: (1) the meeting's subject matter, (2) the meeting's purpose, and (3) the specific exemption under §2.2-3711(A) that applies. General references to FOIA or to the subject matter are not acceptable.

2. For convenience, may the public body in a closed meeting discuss public business outside the scope of the motion to close?

No. Only those matters identified in the motion to close may be discussed. When the public body reconvenes in an open meeting, the members each must certify that only matters identified in the motion to close were discussed.

3. Does a public body have to turn over minutes taken during a closed session?

No. There is no requirement that minutes even be taken in closed session, and any minutes that are taken do not have to be disclosed; they may be released, however, in the public body's discretion.

4. Can a public body prohibit the participants in a closed meeting from talking about the meeting afterwards?

Nothing in FOIA prohibits someone from telling the public what went on in the closed meeting. An internal rule of this nature would be subject to constitutional challenge under the First Amendment.

5. A member of the public body came out of closed session and refused to certify that no additional topics were discussed. Does this void the public body's action on the matter?

As long as a vote on the matter is taken in open session, the public body's failure to stick to the topics originally identified will not void any subsequent actions. The failure is still considered a FOIA violation, however, and may be challenged in court.

2.2-3713. PROCEEDINGS FOR ENFORCEMENT OF CHAPTER.

Commentary for §2.2-3713

This section details how a citizen goes about enforcing the rights guaranteed by FOIA. The 2007 General Assembly clarified the venue provisions -- that is, where a FOIA lawsuit may be filed. Cases against local public bodies can be filed in the city or county district or circuit court where the public body is located. Regional public bodies can be sued in the same cities where the principal business office of the body is. And state bodies can be sued where the plaintiff lives, or in the City of Richmond.

Click here for the form (in PDF) needed to file in general district court, along with the instructions for the form (also in PDF).

The section lays out the requirements of a petition, and confirms that even a first-time denial of rights under the chapter may be corrected in a judicial proceeding. Attorneys' fees and costs may be awarded at the court's discretion to a petitioner who substantially prevails at trial.

The court is to give the petition an expedited hearing. At the hearing, the public body has the burden to prove why FOIA procedures were not followed.

Certain public officials can ask the Attorney General to issue an opinion on a specific problem. However, anyone (government employee, citizen or member of the news media) may ask the Virginia Freedom of Information Advisory Council for a formal or informal opinion on a particular matter. Call toll free 1-866-448-4100 or send an e-mail to foiacouncil@dls.virginia.gov.

Questions & Answers for §2.2-3713

1. What happens in court when the petitioner is seeking an order to have records released that the public body says are protected by an exemption?

The public body carries the burden of proof to show why a particular exemption, either from the public records or the open meetings section of FOIA, applies.

3. If the court finds that a public body violated FOIA, what can the court do?

The court may issue the injunction or order mandamus (an order directing a government employee to perform a specific task or function). The court may rule that the public body should pay attorneys' fees and/or reasonable costs to the petitioner. The court also may impose a fine, as provided in §2.2-3714.

4. Where can a citizen get an immediate answer to my a FOIA question?

The quickest way to get an answer to your questions about how to apply FOIA is to call the Virginia Freedom of Information Advisory Council toll free at 1-866-448-4100 or send an e-mail to foiacouncil@dls.virginia.gov for a free opinion on the matter.

2.2-3714. VIOLATIONS AND PENALTIES.

Commentary for §2.2-3714

The fees a court may impose for violations of FOIA were increased by the 1999 General Assembly. If the court finds a willful and knowing violation of FOIA, it may impose a fine of $100 to $1,000. Second and subsequent violations may be fined at $500 to $2,500.

Questions & Answers for §2.2-3714

1. If the court finds that a public body violated FOIA, what can the court do?

In addition to granting mandamus or ordering an injunction, the court may impose a fine, from $100 to $1,000 for one willful and knowing violation, and from $500 to $2,500 for subsequent and similar violations. The court may also rule that the public body should pay attorneys' fees and/or reasonable costs to the petitioner, as provided in §2.2-3713.

2. Does money paid in fines go to the person who brought the suit?

No. Fines imposed under this section are paid into the State Literary Fund. If an individual was responsible for the violation, the fine must be paid out of his/her own pockets, not from taxpayer funds.

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